Top court enforces duty to consult with Aboriginal groups
Separate rulings on energy projects
OTTAWA — The Supreme Court of Canada ruled Wednesday in favour of a small Inuit community in Nunavut, effectively overturning the National Energy Board’s decision to allow seismic testing in Baffin Bay and signalling a growing willingness by the Crown to enforce the duty to consult with Aboriginal groups.
The court ruled in favour of Clyde River to block the proposal by a Norwegian consortium to conduct seismic airblast testing, a process that allows companies to seek out pockets of oil and gas locked beneath the ocean floor.
In a separate ruling, the Court upheld the NEB’s approval of Enbridge Inc.’s expansion and reversal of its Line 9 pipeline, which was appealed by the Chippewas of the Thames First Nation in southern Ontario.
The Clyde River ruling could signal a critical shift in the duty by oil and gas companies to consult with Aboriginal groups during development. Analysts said it underscores the duty to consult in so-called “expedited” review processes in which the NEB is given the final say on project approvals.
“Everyone sees more consultations coming in these types of situations,” said Dwight Newman, a professor at the University of Saskatchewan.
The decision comes as several First Nations groups are appealing the approvals of major pipeline expansions in Canada, including Kinder Morgan Canada’s Trans Mountain pipeline that stretches from northern Alberta to a port near Vancouver.
Newman said the two decisions are distinct from major pipeline proposals, because the rulings involve the expedited review process that does not require the same degree of consultations.
But, the Clyde River ruling could nonetheless signal a growing willingness to override approval of projects by regulatory bodies if duty to consult is not met. The justices wrote that the Crown “always holds ultimate responsibility for ensuring consultation is adequate” as part of the rationale for its decision.
The decision is in stark contrast to the ’Standing Buffalo’ ruling in 2009, in which some First Nations groups appealed the approval of two crude oil pipelines and a third diluent pipeline, a product that is mixed with heavy oil to allow it to flow. The appeal was ultimately denied on the grounds that it was not within the mandate of the NEB to assess whether there was adequate consultation around the projects.
In the Clyde River case, the court said its ruling was not due to environmental risk, but because consultations did not properly address Inuit treaty rights that allow locals to hunt large mammals and fish in the region. Residents of Clyde River worried that the loud airgun blasts used in seismic tests could have unknown impacts on populations of narwhal, beluga, bowhead whale and walrus.
“This could change the migration routes of whales,” former Clyde River mayor Jerry Natanine said this week. He said some residents are concerned the blasts could either physically harm whales and fish, or potentially scare them off to regions beyond the reach of local fishermen.
“That would be devastating,” he said.
Natanine said the consortium consulted with the local Inuit communities, but that it did not provide adequate responses to local concerns. In one instance, the community asked for video monitoring of how fish would react to airgun blasts, but the consortium did not provide it, he said.
The consortium, made up of Norwegian companies TGSNOPEC Geophysical Company, Petroleum Geo-Services and Multiklient Invest AS, did not respond immediately for comment Wednesday.
Meanwhile, in upholding the approval of Enbridge reversal and expansion of its Line 9B project, the court said the Cal- gary-based company’s consultation with local communities was “far more robust” than the Norwegian consortium’s consultations with residents of Baffin Island. The company years ago proposed to reverse and expand the Sarnia-to-Montreal pipeline, increasing capacity to 300,000 barrels per day from 240,000. It was approved by the NEB in March 2014, and went into service December 2015.
The court said Enbridge’s consultation process was “manifestly adequate.” The company hosted several oral hearings before work on the pipeline began. Locals were also given adequate time to submit written concerns to the NEB, the ruling said.
Enbridge applied for the reversal in order to transport heavy oil from Western Canada to refineries in Ontario and Quebec.
In a statement Wednesday, the company said it “appreciates and respects” the SCC decision.
As for Clyde River, the decision is not expected to have much impact on oil and gas development in the region. Ottawa imposed a five-year ban on oil and gas exploration in Arctic waters in December 2016, and low oil prices have made fossil fuel development uneconomic in remote Northern locations.